Crime and Punishment: Using criminal law to support growth and economic recovery

Inaugural meeting of the Expert Group on EU Criminal Policy – Brussels

19 June 2012

Ladies and Gentlemen,

It is a great pleasure to open the first meeting of the Commission's expert group on EU criminal law.

I am delighted that you are willing to assist the European Commission in designing and delivering an EU criminal policy.

I am happy to see some familiar faces. Some of you have already provided much appreciated input to our policy-making over the past years. The "Manifesto on European Criminal Policy", of Professors Satzger, Foffani, Asp and others, is a good example. Others have had official and operational responsibilities in European matters such as Mike Kennedy with Eurojust and Igor Dzialuk. You are all most welcome.

We are at a delicate juncture of European integration. The crisis has triggered a necessary debate about where we stand in Europe and where we are headed. Europe is at a crossroads at the moment. I am convinced that the current crisis will lead to a stronger European Union than the one we have today: a stronger Economic and Monetary Union and a full Political Union. A Union that is at the service of the citizens, and puts the fundamental rights of citizens even more at the heart of all its activities.

To achieve the goal of a stronger Union we need to build a bridge to the future: a bridge to bring the necessary solidity and confidence about how Europe will be governed in 2020.

I see your work as part of building such a bridge. You will assist the Commission in developing a coherent and consistent approach to criminal law and in meeting the ambitions set out by the Treaty of Lisbon in this area.

Criminal law has a very particular nature. It is a stern social control mechanism with deep impact on fundamental civil liberties.

It is therefore important that we pay utmost attention to the clear legal and democratic limits of EU action in this field.

European Union criminal law must be developed on a solid bed of fundamental rights, and notably of fair trial rights. It must also be developed in agreement with the European Parliament, in close contact with the national Parliaments and in respect of the different legal systems and traditions of all our Member States.

This was not always the case. During the pre-Lisbon time of the old "third pillar", criminal law lived in the shadows of European politics and European law. In the shadows and behind the closed doors of the Council of Ministers where decisions were taken without public debate, without democratic scrutiny by the European Parliament and without full judicial review.

As a result the EU developed a series of less-than-perfect European laws many of which have never been fully transposed.

Things have now changed. The Treaty of Lisbon and the legally binding Charter of Fundamental of Rights have made us better equipped to fight cross-border crime with criminal law. The Commission proposes legislation; the European Parliament and the Council are co-legislators; national Parliaments scrutinise the respect of subsidiarity and all this is subject to judicial review by the Court of Justice. With the Treaty of Lisbon, the European Commission can also play its role as guardian of the Treaty fully. Accordingly we will make sure that Member States correctly transpose what they agree to and when necessary we will ensure this by way of infringement proceedings.

The Treaty of Lisbon also bestows us with an extra responsibility to carefully define the fundamental interests we want to protect with criminal law.

Criminal law is a sensitive policy field. It reflects societal values. We can determine what conduct needs to be treated as criminal by looking at when a reasonable man or woman thinks the conduct is unacceptable to our moral fabric. However, and as criminal law intrudes heavily on the fundamental rights of people, we also have to decide what defines a reasonable person.

At European Union level, differences amongst the national systems remain substantial. This is the case when it comes to types and levels of sanctions as well as the classification of certain conducts as an administrative or criminal offence. Action at the level of the European Union must therefore tackle gaps to ensure that criminals can neither hide behind borders nor abuse differences between national legal systems.

I count on your expertise to live up to that challenge and responsibility and enable the European Commission to develop a more coherent and consistent approach to criminal law – one that is effective and at the same time respectful of the different legal systems and traditions in Europe.

To meet this objective we will need to hear from academics, practitioners, judges, defence lawyers and prosecutors. In short, we need the advice of all those who will apply the European Union laws that we are shaping.

Your long-standing expertise and experience in applying criminal law on a daily basis is therefore key to achieving that objective successfully.

I see three areas of priorities where the Commission expects you to focus your work:

First, the fight against fraud affecting the financial interests of the European Union to ensure that taxpayer’s money is protected to an equivalent degree across the Union. In 2010, €600 million worth of suspected fraud were reported by Member States from the EU money they manage. Effectively protecting the EU budget means ensuring that taxpayers' money is only used to promote growth and solidarity in Europe. EU money should not be pocketed by criminals. Protecting EU money requires common criminal law rules. And we need to ensure that such rules are of the highest standard. We are preparing proposals to modernise the pre-Lisbon rules on common definitions, jurisdiction and limitation periods. This will also be a first step towards preparing future proposals on establishing a European Public Prosecutor’s Office in line with the ambitions of the Treaty of Lisbon. The aim is clear: to ensure that fraud to the EU budget does not go unpunished.

Second, we also need you to work on strengthening the rules protecting the euro against counterfeiting through criminal law. This is essential to strengthen the public’s trust in the security of means of payment in the common currency of the European Union – our currency – and a currency that is irreversible and forever.

Third, I would also like to hear from you on the areas where criminal law can contribute to growth and to the economic recovery. Criminal law can help tackle the illegal economy and financial criminality. This is particularly relevant when we use criminal law as a necessary tool to ensure effective enforcement of European policies and laws. This is why, last November, I presented minimum rules on criminal offences and on criminal sanctions for market abuse. These can help ensure the effectiveness of Union policy on financial markets. Criminal convictions for market abuse offences also help to improve deterrence as they demonstrate to potential offenders that the authorities take enforcement actions seriously and that these can result in imprisonment or other criminal sanctions as well as a criminal record. These are examples of how criminal law can help deter money from fuelling criminal activity.

To help achieve results in these areas of priority, this afternoon you will address some of the challenges that lie before us. As an example, you will discuss what are "effective, proportionate and dissuasive" sanctions in Member States' specific context? How can we ensure that the common rules do not remain "paper tigers" but bring our systems closer together, for the benefit of our citizens and businesses? The Lisbon Treaty offers fresh opportunities. But we need to reflect carefully about what the EU criminal law policy can achieve. Respect for the principles of subsidiarity and proportionality is of great importance in Union law-making. It is also very much the case when it comes to criminal law, as we all understand that criminal law should always be a last resort.

You will also discuss the interplay between administrative and criminal sanctions. I count on you to help us reach a common understanding of the criteria that define criminal law, the role of administrative and criminal sanctions and how they can best complement each other.

In line with the mandate of this group, I have focused on the punitive aspects of an EU criminal policy. But I cannot conclude without stressing the importance of balancing substantive criminal law with procedural law strengthening fair trial rights. These are two sides of the same coin, and we need to ensure that we aim for high protection standards, not simply for the smallest common denominator.

I am glad to see the significant progress we have made in these areas over the last two years. Two measures – on interpretation and translation and on the right to information, establishing the Letter of Rights – have already been published in the Official Journal and are now being transposed by the Member States. Negotiations on a third measure – on the right to access to a lawyer and the right to notification of arrest – are advancing fast. We are also putting the finishing touches on new legislation on the rights of victims of crime to ensure that victims will soon be granted a stronger and more respectful standing in criminal proceedings throughout the European Union.

Common standards for procedural and victims' rights are an indispensable basis for mutual trust across Europe in the area of criminal justice. Only on this basis can we really move closer to a true European area of Justice.

Distinguished experts,

As I said earlier, the Treaty of Lisbon makes it clear: legislation in this area must "respect the different legal systems and traditions of the Member States".

This requires solid knowledge and understanding of these traditions. This should be the starting point of our work in this area. We depend on your input. The group gathered today brings together experts from across the European Union and represents the diversity of the major legal traditions of the European Union. This diversity will make your advice even more important and effectively associate European Criminal Policy with the constitutional traditions of all our Member States, thus ensuring its full compliance with the rule of law.

I wish you every success in making the law work better for those whom it affects. Our citizens deserve nothing less. Thank you also for your invaluable contribution to making our European Union a safer, fairer and more perfect Union.